House Judiciary Committee Issues Report on Protecting Access to Care Act (Part 2 of 2)
Continues from Part 1 of 2
Dissenting Views
H.R. 1215, the "Protecting Access to Care Act of 2017," will do little to protect Americans' access to safe and affordable health care. Instead, it will undermine the ability of victims of medical malpractice and defective medical products to be fully compensated for their injuries. It does this by imposing onerous restrictions on lawsuits against health care providers concerning their provision of health care goods or services, regardless of the merits of a case, the misconduct at issue, or the severity of the victim's injury. By imposing these one-size-fits-all Federal standards on traditionally state court proceedings, H.R. 1215 would also trample states' rights. The Committee has considered similar so-called medical malpractice reforms on 11 prior occasions going back to 1995 and, like the prior iterations of this bill, H.R. 1215 raises the same core issues of fairness and federalism with little regard for the consequences.
H.R. 1215 is highly problematic for many reasons. To begin with, it intrudes deeply on state sovereignty by preempting several areas of tort law that traditionally have been governed by the jurisprudence of each individual state or by state legislatures. Additionally, the bill's scope is broader than medical malpractice, potentially imposing new restrictions on claims concerning nursing home negligence and defective pharmaceuticals or medical devices. Further yet, H.R. 1215 could prevent victims from having their day in court by providing unjustified immunity for health care providers who dispense defective or dangerous pharmaceuticals or medical devices, by instituting an extremely short statute of limitations period, and by imposing limitations on attorney contingent fee arrangements that will discourage lawyers from representing victims. Finally, H.R. 1215 imposes various requirements that will significantly diminish a victim's ability to be fully compensated for their injuries, including: (1) the elimination of joint and several liability with respect to claims for both economic and noneconomic damages, (2) an extremely low cap on noneconomic damages such as those for pain and suffering, which will particularly limit compensation for members of vulnerable groups like the poor, the elderly, children, women, and other groups who tend to have less in terms of lost wages or other economic loss, and (3) the allowance for periodic payments of future damages of
In recognition of these significant concerns, a coalition of 30 consumer and public interest groups, including the
1Letter from 30 consumer groups to Chairman
2Letter from
3Letter from
For these reasons, and for those discussed below, we respectfully dissent from the Committee's report and oppose H.R. 1215.
DESCRIPTION AND BACKGROUND
DESCRIPTION
H.R. 1215 would preempt state law generally to the extent that state laws are more protective than the bill's provisions of the rights of medical malpractice victims and the victims of defective medical products. It would replace such victim- protective laws with new requirements and limitations that would restrict or undermine the ability of injured persons to be fully compensated for their injuries or even to have their claims heard in court. The following describes some of the bill's most troubling provisions.
Section 10(a) sets forth the general rule that the bill's provisions preempt state law. It specifies that, except as otherwise provided in the bill, the legislation's provisions governing health care lawsuits preempt state law to the extent that state law prevents the application of any provisions of law established by or under this legislation. The bill at various points sets forth exceptions to this general preemption provision generally for state laws that are more restrictive for plaintiffs than the bill's provisions would be. Section 10(c) specifies that no provision of this legislation may be construed to preempt any defense available to a party in a health care lawsuit under any provision of state or Federal law.
The bill defines "health care lawsuit" to include not only medical malpractice claims, but also claims concerning medical products. Specifically, section 8(7) defines "health care lawsuit" to mean "any health care liability claim concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit." This definition appears to cover any claim arising from health care products or services paid for at least in part by programs such as
4Pub. L. No. 111-148, 124 Stat. 119 (2010).
The bill defines "health care liability action" as a civil action brought in state or Federal court or pursuant to an ADR system against a health care provider in which the plaintiff alleges a health care liability claim. "Health care liability claim," in turn, is defined as "a demand by any person, whether or not pursuant to ADR, against a health care provider . . . which [is] based upon the provision or use of (or the failure to provide or use) health care services or medical products." The bill defines "health care provider" as "any person or entity required by law to be licensed, registered, or certified to provide health care services" and defines "health care services" to mean "the provision of any goods or services by a health care provider" or any individual working under such person's supervision that relates to the diagnosis, prevention, or treatment of human disease or impairment or an assessment or care of human health. This definition is broad enough that it could include not just physicians and hospitals, but also nursing homes and long-term care facilities.
Section 2 creates a statute of limitations for "health care lawsuits." Claimants must commence a health care lawsuit within 3 years of the date of injury or within 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.
Section 3 caps non-economic damages in "health care lawsuits" at
Section 4 places limitations on the amount of contingent fees that a plaintiff's lawyer may recover as compensation in a "health care lawsuit." In particular, section 4(a) provides that the total of all contingent fees for representing all claimants in a health care lawsuit must not exceed the following limits: (1) 40 percent of the first
Section 6 provides that where a claim for future damages of
Finally, section 7 provides complete immunity for health care providers who prescribe or dispense pursuant to a prescription a medical product "approved, licensed, or cleared by the
BACKGROUND
Every year, as many as 440,000 Americans die from preventable medical errors, making it the third leading cause of death.5 Even where death does not result from such errors, the injuries suffered by patients can be severe and permanent. In fact, there are 20 times as many serious, yet nonfatal, preventable injuries to patients. According to the
5Marla Paul, How to Prevent 440,000 Yearly Deaths Due to Medical Errors, Northwestern Now,
6National
7According to the
8The Joint Commission, Sentinel Event Alert, Issue 51,
9Failure to diagnose a disease and medication errors are the two most common bases for filing a medical malpractice lawsuit.
A medical malpractice claim is a tort-based legal claim for damages arising out of an injury caused by a health care provider. Tort claims are part of "common law" or judge-made law of the
10"Tort law at present is almost exclusively state law rather than federal law [.]" Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes,
Product liability actions are actions brought against the manufacturer or seller of a defective or dangerous product by a consumer who is injured as a result of that product. Like other areas of tort law, products liability is governed by state laws on negligence, breach of warranty, or strict liability.
The tort system provides various benefits to society. First, it compensates victims who have been injured by the negligent conduct of others. Second, it deters future misconduct and carelessness that may cause injury and punishes wrongdoers who inflict such injury. Third, it prevents future injury by removing dangerous products and practices from the marketplace. Fourth, it informs an otherwise unknowing public of such harmful products or practices thereby expanding public health and safety.11
11Joan
Most medical malpractice claims are based on the tort of "negligence," defined as conduct "which falls below the standard established by law for the protection of others against unreasonable risk and harm."12 In medical malpractice cases, this legal standard is based on the practices of the medical profession,13 and is usually determined based on testimony of expert witnesses. As with other torts, remedies for medical malpractice may consist of: (1) compensatory damage awards for economic losses such as medical expenses, lost wages, pain and suffering, reduced life expectancy and diminished quality of life; and (2) punitive damages to punish and deter willful and wanton conduct.
12Restatement (Second) of Torts Sec. 282 (1965).
13David
Medical malpractice liability insurance has historically attracted the attention of
14Paul Greve &
15Id. at 5.
CONCERNS WITH H.R. 1215
I. H.R. 1215 VIOLATES STATE SOVEREIGNTY.
H.R. 1215, like many so-called "tort reform" measures that the Committee has considered, represents a deep intrusion into state sovereignty. Although tort law is an area historically developed and shaped by the states, H.R. 1215 raises broad federalism concerns as it preempts several areas of tort law that traditionally have been governed by the jurisprudence of each individual state or by state legislatures. The bill mandates that, with certain very limited and defendant-friendly exceptions, each of the bill's provisions "governing health care lawsuits set forth in this Act preempt . . . State law to the extent that State law prevents the application of any provisions of law established by or under this Act."16 In particular, H.R. 1215 preempts state law governing joint and several liability, the availability of damages, attorneys' fees, and periodic payments of future damages. In short, H.R. 1215 does nothing to address the fundamental concerns about states' rights raised by our Republican Committee colleagues as it intrudes just as deeply as its predecessor bills into areas traditionally determined by the states.
16H.R. 1215, 115th Cong. Sec. 10(a) (2017) (as amended).
As with previous versions of this legislation, many provisions of H.R. 1215 are written to be "one-way preemptive"--that is, they only supersede state laws that are generally more favorable to victims, rather than preempting state law equally across the board. For instance, the bill does not preempt any defenses available to defendants under state law. In addition, H.R. 1215 leaves intact damage caps determined by states even if they exceed those in the bill, but would impose them on states lacking such damage caps. Similarly, the bill leaves in place state limitations periods that are shorter than those provided for in the bill, but not those that may be longer; state laws that provide for lower contingent fee payments to plaintiffs' attorneys, but not those that may authorize higher payments; and state laws that specify periodic payments for future damages at any amount other than
Examples of state provisions that H.R. 1215 would preempt include state constitutional provisions in
17The relevant state constitutional provisions are
18Alabama,
19Alabama,
In light of the fact that H.R. 1215 fundamentally upends our Nation's Federal constitutional structure, Representative
20Unofficial Tr. for Markup of H.R. 1215, the "Protecting Access to Care Act of 2017," by the H. Comm. on the Judiciary, 115th Cong. 105 (
21Id.
22Id. at 119.
23Id. at 132-36, 148.
24Id. at 136, 142, 153, 158.
25Id. at 158.
26Id. at 164.
II. H.R. 1215 APPLIES WELL BEYOND MEDICAL MALPRACTICE.
H.R. 1215 makes sweeping changes to the ground rules for "any health care lawsuit brought in a Federal or State court, or subject to an alternative dispute resolution system, that is initiated on or after the enactment of this Act. . . ."27 The bill, in turn, defines a "health care lawsuit" as:
27H.R. 1215, 115th Cong. Sec. 11 (2017) (as amended).
any health care liability claim concerning the provision of health care goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider regardless of the theory of liability on which the claim is based. . . .28
28Id., Sec. 8(7).
Importantly, H.R. 1215 defines "health care provider" to include a person or entity licensed or certified to provide health care services, which could include hospitals, surgery centers, nursing homes, assisted living facilities, rehabilitation facilities, and insurance companies. Although it is often described as a "medical malpractice" measure, H.R. 1215 is not limited to medical malpractice lawsuits because its health care lawsuit definition covers all "health care liability claims," including claims based on the provision of medical products by a health care provider, and to "any theory of liability on which the claim is based," including those based on actions taken by drug and medical device manufacturers, nursing homes, insurance companies, and health maintenance organizations.
Finally, although H.R. 1215's proponents may assert the bill is narrower than its predecessors, it is, in fact, almost as broad. The definition of "health care lawsuit" attempts to limit the bill's scope to claims arising from Federal Government-subsidized health insurance programs, such as
Given the bill's broad scope, including its potential application to claims for abuse or negligence against nursing homes and long-term care facilities, Representative
29Markup Tr. at 101.
III. H.R. 1215 RESTRICTS HEALTH CARE LAWSUITS THAT WILL DIMINISH OR COMPLETELY BLOCK VICTIMS' ABILITY TO BE COMPENSATED FOR THEIR INJURIES.
A. LH.R. 1215 Provides Unjustifiable Immunity for Health Care Providers Who Dispense Defective or
H.R. 1215 threatens to undermine the ability of victims of defective or dangerous medical products, including prescription pharmaceuticals and medical devices, to be made whole. The bill adds a new provision, not contained in previous iterations of this measure, that gives a complete liability shield for health care providers who provide defective or dangerous products to a plaintiff if such product was "approved, licensed, or cleared by the
30H.R. 1215, 115th Cong. Sec. 7 (2017) (as amended).
This provision could prevent victims from receiving just compensation for injuries in many cases. For example, where the health care provider is also the manufacturer of the defective or dangerous product, such as in the case of certain pharmacists, the victim may be left without someone to sue for his or her injury. Similarly, where a manufacturer successfully shifts blame onto the provider for negligent dispensing or use of a drug or device, a victim may lose any access to restitution since she cannot sue the provider. This excessively broad liability shield for health care providers--which, effectively, could also provide legal protection for drug and device manufacturers--is both unjust and unjustifiable. B. LH.R. 1215 Imposes an Excessively Short Statute of Limitations Period.
H.R. 1215 imposes an extremely restrictive statute of limitations for medical malpractice actions that significantly reduces the time that an injured person has to file a lawsuit. It provides that "the time for the commencement of a health care lawsuit shall be no later than 3 years after the date of injury or 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first."31 The effect of this language is that a victim has, at most, 3 years, and as little as 1 year, to file suit.
31Id., Sec. 2 (emphasis added).
Although disguised as a 3-year statute of limitations, the effect of this provision is that the claimant often has exactly 1 year from the date of discovering the injury to file suit. A claimant will, quite often, "discover" an injury on the same day or shortly after an injury occurs. This provision also cuts in the opposite direction, hindering patients who are injured by diseases with long latency periods. For example, a patient who was infected with HIV through a negligent blood transfusion may not discover his injury until more than 3 years after the date of the injury because the symptoms of his injury may manifest more than 3 years after the negligent transfusion. To the extent that the bill's statute of limitations period is shorter than those currently available under state law, it works to deny victims their day in court.
C. LH.R. 1215 Makes It Harder for Victims To Obtain Adequate Legal Representation.
H.R. 1215 severely limits the amount an attorney may receive in the form of contingency fee payments. Contingency fee arrangements--where attorneys forgo immediate payment in exchange for a share of the damages if a plaintiff prevails in court--serve a useful and essential function in the legal system.32 Because contingency fee agreements require little or no money up front, injured plaintiffs who could not otherwise afford legal representation have access to counsel. In short, competent legal representation comes at a cost and H.R. 1215 would undermine the ability of plaintiffs to obtain such legal representation. Moreover, because attorneys who take losing cases are paid little or nothing for their efforts, contingency fees also serve as a screening mechanism for "frivolous" cases.33
32See
33Id.
H.R. 1215 would sharply erode the incentives provided by contingency fee arrangements and threaten the ability of injured plaintiffs to obtain legal representation by capping the total amount of all contingent fees for representing all claimants in a health care lawsuit to: (1) 40 percent of the first
D. LBy Eliminating Joint and Several Liability for Economic and Noneconomic Damages, H.R. 1215 Makes It Very Difficult for Victims in Health Care Lawsuits To Be Made Whole.
H.R. 1215 eliminates joint and several liability for economic and noneconomic loss. Joint liability ensures that injured patients are fully compensated for their losses by allowing one lawsuit to be brought against multiple defendants and having the defendants apportion fault among them. The doctrine is designed to ensure that victims of wrongful conduct are able to recover the full amount of damages for their injuries, especially when one or more of the defendants is insolvent. Many states recognize joint and several liability based on the principle that it is the injured patient, rather than the multiple negligent providers, who rightly should be given the greatest measure of protection under the law. By eliminating joint and several liability, H.R. 1215 threatens the ability of plaintiffs to be made whole.
Given the harm to victims that would result from eliminating joint and several liability, Representative
34Markup Tr. at 199.
E. LH.R. 1215 Unjustifiably Caps Noneconomic Damages, Which
H.R. 1215 caps noneconomic damages at an aggregate amount of
Representative
35Id. at 63-64.
F. LH.R. 1215 Inequitably Imposes the Risk of Loss on Victims Rather than Wrongdoers.
H.R. 1215 provides that, upon request of a party, payments of future damages--i.e., damages accrued after judgment, settlement, or resolution of the case--in excess of
IV. H.R. 1215 PROVIDES NO EXCEPTIONS TO ITS ONEROUS PROVISIONS FOR THOSE WHO HAVE SUFFERED EVEN THE MOST HORRIFIC INJURIES OR ARE THE VICTIMS OF THE WORST KINDS OF MISCONDUCT.
H.R. 1215's onerous requirements apply even in cases where a health care provider has intentionally harmed a patient or when the medical error is especially egregious. For instance, the bill's extremely low cap on noneconomic damages would likely prevent full compensation for a child who has been sexually molested by a health care provider, a woman who had a healthy breast removed after a misdiagnosis of breast cancer, or a low-income person who had the wrong leg amputated by a surgeon. The bill's other provisions would likewise make it far less likely that victims of such egregious medical misconduct will be fully compensated for their injuries or even have their day in court.
For the foregoing reasons, Ranking Member
36Id. at 63.
Representative
37Id. at 132.
Similarly,
38Id. at 87.
Finally, Representative
39Id. at 183.
CONCLUSION
While
Ms.
-1298520
EDITORIAL: Moving on: Who’ll fix Obamacare now?
House Energy & Commerce Committee Issues Report on Affordable Care Act
Advisor News
Annuity News
Health/Employee Benefits News
Life Insurance News